Scottish Elections: Freedom of expression online

Ahead of May’s elections, Open Rights Group Scotland has selected three areas of focus for our digital rights campaigning. The third area is freedom of expression online.

Recent legislative developments such as the UK’s online harms framework, Scotland’s Hate Crime Bill, and the US repercussions from the former President’s misuse of social media have created a very public and polarised debate on freedom of expression. Where digital rights are concerned, issues like these pose two threats.

The first threat to freedom of expression online is the risk of laws creating a chilling effect on public discourse. No legislator will ever say outright that their proposal curtails freedom of expression, but the devil is in the details. If regulations are unclear, complex, or excessive, people will prefer to self-censor themselves rather than risk falling afoul of rules that are impossible to comply with. Platforms and service providers may also feel they have no choice but to proactively take down content, even if it’s completely innocuous and legal, rather than risk condemnation and penalties.

There are safeguards which can be put in place to mitigate these risks. Some of them involve the procedures required before content is removed, and the recourse a user has to appeal a decision that has been made about the content they posted. Healthy regulations use what is known as a “notice and takedown” system, where a user is informed of the reason why a piece of content was removed; those rules must be grounded in clearly defined terms of service. This ensures that services cannot simply silence voices they do not like, or disagree with, with no explanation of why. 

ORG Scotland recently worked with the Scottish Government to explain these risks in the context of the Defamation and Malicious Publication (Scotland) Bill, and to advise on further measures that can be taken to safeguard freedom of expression within it. We helped resist a blanket power for courts to take down content before adjudication was reached, and provided an alternative to place a noteice explaining that the content is subject to defamation proceedings. Nevertheless, we will need to be vigilant that courts do not default to removing content before it is adjudicated, and excercise this power in very limited circumstances, which otherwise could have a severe impact on free expression. Defamation in Scotland also lacks a notice and counter-notice system, unlike that its counterpart in England and Wales, and this should be another area of improvement. 

The second threat to freedom of expression online is the risk of a two-tier system, where certain kinds of speech may be legal online but illegal offline, and vice versa. When someone is abused online, the laws which apply to them should be the same laws applicable as if that abuse had happened on the street. The direction of travel of current legislation, however, risks the opposite. In our view, it risks forcing sites, platforms, and service providers to become arbiters of public discourse, as well as arms-length law enforcement, based entirely on their internal terms of service rather than the rule of law.

We want any decisions taken regarding freedom of speech online to be done holistically, and linked directly to the offline body of law and law enforcement which defines the most serious offences. Likewise, the offline body of law should be strengthened as necessary to accommodate serious offences online. Law and content moderation should not exist in silos. And any rules which sites, platforms, and service providers are required to follow must be clearly defined in law; no company should feel obliged to write its own rules to control gross misuse of their services.

What’s more, a lack of joined-up thinking between Scotland’s domestic legislation, the UK’s nationwide rules, and the outcomes of parallel processes taking place in Europe could create the baffling scenario where a single blog post, tweet, or private conversation could have different rules applied to it depending on which side of the border it was sent from and which part of the world it was read from. This could create a fragmentation of laws which would make the simplest everyday conversations far more difficult, if not impossible, to engage in. It would also impose byzantine content moderation obligations onto Scotland’s vibrant startups, who, as a result, might feel obligated to move their businesses elsewhere.

There is no doubt that the web could be a better place to be, and the limits of free speech are central to that argument. The proposed legislative solutions may seem easy and even somewhat obvious. But without consideration for the risks to freedom of expression, and the creation of two-tier systems, which are posed by the current raft of proposals, we could very easily lose the rights and safeguards around our freedom of speech, with no meaningful improvement to the problems those proposals have been designed to fix.

Our policy positions

We are calling for parties and candidates to commit to the following principles:

• Freedom of expression will continue to be safeguarded in existing and future legislation;
• That any regulations on freedom of expression will allow for notice and takedown, clear paths to recourse, and the right of appeal through transparent procedures;
• What is illegal online will be illegal offline, and vice versa, and that there will not be a two-tier system;
• That platforms, online service providers, and site administrators will be required to moderate online freedom of speech through the rule of law, not through terms and conditions;
• Any Scottish regulations on freedom of expression consider parallel legislative processes taking place in the UK, and in Europe, to ensure that freedom of speech is not fragmented across borders and boundaries.

Ask the candidates

ORG Scotland will be holding a joint human and digital rights hustings with our friends from Amnesty Scotland at 7 PM on Tuesday 20 April. We’ll be putting questions about these topics and others to the candidates. The event is online and free to view.